Lowry v. University of Oregon Medical School
3:16-cv-01049
D. Or.Jun 2, 2017Background
- Plaintiff born 1963; brought to OHSU in 1966 with reported childhood diagnosis of hemophilia but no corroborating California records.
- OHSU tested plaintiff and family for clotting disorders; results were negative, but OHSU continued and taught home infusions from 1966 through November 1983 due to mother's insistence and perceived psychological risk of stopping.
- Plaintiff continued receiving medical care (allegedly modified by presumed hemophilia) through 2015; after switching to Kaiser in 2015, testing showed no current evidence of hemophilia.
- Plaintiff sued in state court in April 2016 alleging Hepatitis C and asserting medical negligence, battery, intentional infliction of emotional distress, child abuse, failure to obtain informed consent, and a Section 1983 claim; defendants removed to federal court.
- Magistrate Judge issued an F&R recommending summary judgment be granted in part and denied in part: tolling dispute as to OHSU and Dr. Lovrien; dismissal of § 1983 claim as time-barred; most state-law claims barred by Oregon’s statute of ultimate repose except as to OHSU and Lovrien; leave to replead child-abuse claim as breach of fiduciary duty; 1975 OTCA version governs.
- District Court adopted the F&R: dismissed § 1983 with prejudice; dismissed several state-law claims with prejudice as time-barred as to certain defendants; allowed remaining state-law claims to proceed against OHSU and Lovrien; permitted repleading of child-abuse claim as breach of fiduciary duty; applied 1975 OTCA for any OTCA issues.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether statute-of-repose tolls for "fraud, deceit, or misleading representation" (ORS 12.110(4)) as to OHSU/Lovrien | Plaintiff says defendants implicitly misled/concealed diagnosis so tolling applies | Defendants say no actionable fraud/misleading conduct; summary judgment should bar claims | Court: genuine dispute exists as to implicit misleading representations; tolling issue survives for OHSU and Lovrien (deny summary judgment on that ground) |
| Whether child-abuse claim can proceed against public officials or must be repleaded | Plaintiff seeks to proceed or to replead under related statute | Defendants argue § 418.750 was repealed and any amendment is futile; statute provides no private right | Court: permit leave to replead child-abuse claim as breach of fiduciary duty (recodified duties survive in § 419B.005); repleading allowed against OHSU and Lovrien only |
| Whether § 1983 claim is time-barred | Plaintiff argues fraudulent concealment/estoppel prevented accrual and tolling of limitations | Defendants argue plaintiff knew of significant injury more than two years before filing; limitations accrued then | Court: § 1983 claim barred by limitations; dismissed with prejudice (accrual occurs when plaintiff aware of significant injury; no estoppel shown) |
| Which version of the Oregon Tort Claims Act controls and whether damage cap applies now | Plaintiff argues issue premature; contends controlling OTCA version does not determine cap now | Defendants argue 1975 OTCA (in effect during treatment) governs and limits recovery | Court: 1975 OTCA is the version "at issue"; application of any cap reserved until verdict/time of application |
Key Cases Cited
- Dawson v. Marshall, 561 F.3d 930 (9th Cir.) (standard for de novo review of magistrate judge objections)
- United States v. Reyna-Tapia, 328 F.3d 1114 (9th Cir.) (standards for reviewing magistrate findings)
- Washington Mut. Ins. v. United States, 636 F.3d 1207 (9th Cir.) (summary judgment standard)
- Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054 (9th Cir.) (definition of genuine dispute of material fact)
- Lukavsky v. City and Cty. of San Francisco, 535 F.3d 1044 (9th Cir.) (accrual of § 1983 claim when plaintiff aware of significant injury)